Opinion of the Court.

claim under color of title. That is, the party must claim under an apparent title, which he in good faith believes to be the real title to the land." So in Morrill v. Bartlett, 58 Texas, 644, it was held that "a claim under the statute by a defendant sued for land, that he had made permanent and valuable improvements thereon, cannot be regarded when there is no evidence that he ever paid anything for the land, or received a deed therefor, and when he was informed of the controversy which jeopardized his possession before improving the land.”

Many decisions of the Supreme Court of Texas to the same effect are cited by counsel. House v. Stone, 64 Texas, 677, 685; Hatchett v. Conner, 30 Texas, 104; Powell v. Davis, 19 Texas, 380; Armstrong v. Oppenheimer, 19 S. W. Rep. 520.

We are satisfied that defendants were chargeable with notice of the judgment lien, and did not as against the plaintiff occupy the position of adverse possessors, under a claim of title made in good faith prior to the deed of January 2, 1886. Moreover, no evidence was offered to prove the value of the land without regard to the improvements, an essential condition to the application of the statute. Cox v. Hart, supra. When and how far the remedy for valuable improvements may be sought in the courts of the United States, otherwise than in equity, we do not consider.

Judgment was correctly entered against all the defendants for the recovery of the title and possession of the land, and as the Mortgage Company was only interested through the deed of trust to Simpson, it was properly omitted in the recovery of damages.

It is conceded that the defendant M. E. Cooke was the wife of her codefendant, J. H. Cooke. The claim under the deed from Payne must be presumed to have been in community, it being the settled law of Texas that property purchased after the marriage is prima facie such, whether the conveyance be in the name of the husband or of the wife, or in their joint names. Veramendi v. Iutchins, 48 Texas, 531, 550; Cooke v. Bremond, 27 Texas, 457; S. C. 86 Am. Dec. 626; Mitchell v. Marr, 26 Texas, 329. But it does not follow that a general personal judgment, in damages for use and occupation, under

Statement of the Case.

the statute, and for costs, could be rendered against Mrs. Cooke. The record disclosed nothing to justify the subjection of her separate estate to such a liability, and there was error in the judgment in this particular. Linn v. Willis, 1 Posey Cas. 158; Garner v. Butcher, 1 Posey Cas. 430; Haynes v. Stovall, 23 Texas, 625; Menard v. Sydnor, 29 Texas, 257. This does not involve the disturbance of the verdict or a reversal of the judgment in any other respect.

The judgment will therefore be affirmed except as to the recovery of damages and costs against M. E. Cooke, and that part thereof will be reversed as to her, with costs, and the cause remanded, with a direction to the Circuit Court to order the judgment to be modified so as to conform to the conclusion above announced. Ordered accordingly.

HARMAN v. CHICAGO.

ERROR TO THE SUPREME COURT OF THE STATE OF ILLINOIS.

No. 1022. Submitted January 9, 1893. - Decided January 23, 1893.

The ordinance of the city of Chicago, imposing a license tax for the privilege of navigating the Chicago River and its branches upon steam tugs licensed by the United States authorities under the provisions of Rev. Stat. § 4321, is an unconstitutional exercise of municipal authority, and is invalid.

Huse v. Glover, 119 U. S. 543, and Sands v. Manistee Improvement Co., 123 U. S. 288, each distinguished from this case.

THIS was an action against the city of Chicago, Illinois, to recover the sum of three hundred dollars paid by the plaintiff on compulsion, and under protest, for licenses for twelve steam tugs of which he was the manager and owner. The action was commenced in the Circuit Court of Cook County, Illinois, and was tried by the court without the intervention of a jury, by stipulation of parties. At the trial the plaintiffs put in evidence the following agreed statement of facts:

Statement of the Case.

"It is hereby stipulated and agreed that for the purpose of determining the right of the defendant to require of the plaintiff a license, and to impose and collect a fine or license fee therefor, under an ordinance of the said defendant, hereinafter set forth, the following are the ultimate facts under which the said license was required, and the fine or license fee imposed and collected, viz.: That on the 26th day of September, 1888, the said plaintiff was the owner and manager of the following steam tugs, viz.: Tom Brown, F. S. Butler, J. H. Hackley, C. W. Parker, Bob Teed, A. B. Ward, W. H. Wolf, Crawford, G. B. McClellan, Mary McLane, Success and Wahbun; that said tugs, and each of them, were of twenty tons burden and upwards, and were on the said date and for long time prior thereto had been enrolled and licensed for the coasting trade in pursuance of and under the provisions of Title L' of the Revised Statutes of the United States, to which reference is hereby made and which are made a part hereof; that prior to the date aforesaid and on the 5th day of March, 1883, the common council of said city of Chicago, acting under the power supposed to be vested in it by chapter 24 of the Revised Statutes of the State of Illinois, and under which the said city was at said time incorporated, passed and enacted an ordinance regulating the navigation of steam tugs and other vessels on Chicago River and Lake Michigan and the waters tributary thereto, requiring that the owner thereof take out a license therefor, and imposing upon him a fine or penalty for failing so to do, which said ordinance is in the words and figures following:

"Be it ordained by the city council of the city of Chicago: "SEC. 1. No person or persons shall keep, use or let for hire any tug or steam barge or tow-boat, for towing vessels or craft in the Chicago River, its branches or slips connecting therewith, without first obtaining a license therefor in the manner and way hereinafter mentioned.

"SEC. 2. All applications for such license shall be made to the mayor, and upon payment of twenty-five ($25) dollars to the city collector, a license shall be issued for the period of one year by the city clerk for such tug, or steam barge or

Statement of the Case.

tow-boat, and it shall be the duty of the city clerk to keep a register of the name of the person to whom such license is granted or transferred, the day when issued or transferred, the number of the license, and the name and description of the tug so licensed.

"SEC. 3. Every tug or steam barge or tow-boat shall have the number of the license and the name of the owner marked on both sides of such tug, or steam barge or tow-boat, in plain, legible figures and letters.

"SEC. 4. Any individual or person violating any provisions of this ordinance shall be subject to a fine of not less than five dollars ($5) nor more than fifty dollars ($50) for each offence. "SEC. 5. This ordinance shall be in force from and after its passage.

"That said steam tugs were enrolled and licensed in the manner and for the purpose aforesaid, by the United States authorities in and at the Northern District of Illinois, in which the said defendant, the said city of Chicago, is situated, and were on the 26th day of September, 1888, and for a long time prior thereto had been engaged in the coasting and foreign trade, and in commerce and navigation, namely, in towing vessels engaged in interstate commerce into and out of the Chicago River and harbor from and to said Lake Michigan, and in pursuance of the conduct of the said trade, were navigating the said Chicago River and the waters of Lake Michigan, and the tributaries thereto, which said river is from time to time deepened for navigation purposes by dredging under the direction and at the expense of said city of Chicago.

"That on the said day the said city collector of the said city of Chicago, the defendant herein, notified the said plaintiff to apply for and take out a license in pursuance of the requirements of the said ordinance for each of said steam tugs, and to pay therefor the sum of twenty-five dollars for each of 'said tugs, or the sum of three hundred dollars in the aggregate; that the said plaintiff thereupon notified the said collector that the said steam tugs, and each of them, were licensed for the coasting trade, in pursuance of and in accordance with the requirements of the laws of the said United

Statement of the Case.

States, and were engaged in said trade on the said Chicago River and said Lake Michigan, and the waters tributary thereto, in the manner as aforesaid, and thereupon claimed to the said collector that the said ordinance was invalid, and that the said city of Chicago had no power or authority to require the said plaintiff to take out a license in pursuance of the requirements of the said ordinance, or to pay the said fee, whereupon the said collector of the said defendant caused the said plaintiff to be arrested upon a warrant issued for that purpose, and that while the said plaintiff was under arrest he paid the said license fee under protest, and took out the license as required by the said ordinance, and as demanded of him by the said collector, which said license was thereupon issued to him.

"That the amount of the fees so as aforesaid paid to the said collector for the said defendant was the sum of three hundred dollars; that the said sum was paid by the said collector into the treasury of the said defendant, the said city of Chicago, and that the questions which arise on the foregoing state of facts are as follows, viz. :

"1st. Whether or not the said defendant can require the plaintiff to take out the license and collect therefor the fees provided for in the ordinance aforesaid.

"2d. Whether there was vested in the defendant the power to require of the plaintiff the license and fee provided for in the ordinance aforesaid, and in the manner shown by the foregoing state of facts.

"3d. Whether the said ordinance under which said license was required and the said fee was imposed and collected, is legal and binding upon the plaintiff.

"4th. Whether the plaintiff is not entitled to judgment for the amount of fees so paid by him as aforesaid.

"It is hereby further stipulated that the said facts may be presented to the court and tried under the pleadings as they now stand, and that an order may be entered in said suit, submitting the same to the Honorable Richard S. Tuthill for trial without the intervention of a jury, and that either party shall have the right to appeal from the decision and final judgment of the court herein in the same manner and to the same ex